1 The respondent, who was born on 7 February 1938 and has resided in Australia since his arrival on 6 October 1960, is a citizen of New Zealand. In 1995 the respondent was convicted of an offence for which he was sentenced to a period of imprisonment of twelve months. The offence was committed in 1964 and, therefore, under ss 200 and 201 of the Migration Act 1958 (Cth) ("the Act"), the appellant ("the Minister") was entitled to order the deportation of the respondent.

2 On 2 March 2000 a delegate of the Minister made an order that the respondent be deported from Australia. The respondent applied to the Administrative Appeals Tribunal ("the AAT") pursuant to s 500 of the Act to review the delegate’s decision. On 13 October 2000 the AAT affirmed the delegate’s decision to deport the respondent.

3 In September 2000 the respondent was taken into immigration detention pursuant to s 253 of the Act. On 10 September 2001 the respondent sought to appeal to this Court against the AAT decision. On 11 September 2001 the Department of Immigration and Multicultural Affairs ("the Department") sent the following letter to the respondent:

"Dear Mr Craig

Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973. This decision effects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As you fall within this category, no further action will be taken to effect your deportation and arrangements have been made to have you released from immigration custody as soon as practicable.

Yours sincerely,

[Signed]

Peter Holthouse
Manager
Compliance and Investigations
Queensland"
4 The High Court decision referred to in the letter was Re Patterson; Ex parte Taylor (2001) 207 CLR 391 ("Patterson"). The respondent was duly released from immigration detention on 11 September 2001. On 12 September 2001 the respondent informed the Court that he would not proceed with an application for leave to appeal from the AAT decision.

5 On 9 December 2003 the High Court delivered its decision in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 ("Shaw") which overruled Patterson. On 19 March 2004 the Department sent the following letter to the respondent:

"Dear Mr Craig,

On 11 September 2001 the Department wrote to you to inform you that no further action would be taken to enforce the order for your deportation under section 200 of the Migration Act 1958 dated 02 March 2000. This followed a decision of the High Court that indicated that certain British subjects who arrived in Australia prior to 1973 were not ‘aliens’, and could not be deported or removed, under the Migration Act 1958.

In a more recent decision, a majority of the High Court has departed from the previous decision and held that British subjects who arrived after 26 January 1949 and have not been naturalised are ‘aliens’ for the purposes of the Migration Act 1958. I refer you to the decision of Shaw v MIMIA [2003] HCA 72 (9 December 2003) which now represents the law. As a consequence, the decision of the Delegate of the Minister to order you deportation under section 200 of the Migration Act 1958 stands and you are liable to be detained under s253 of the Migration Act 1958 and removed from Australia.

You are hereby notified of the Department’s intention to enforce the decision to order your deportation of 02 March 2000. You are hereby given 14 days notice from the date of receipt of our intention to enforce the decision. This gives you an opportunity to make arrangements to depart Australia of your own accord. Should you not depart Australian within this period, you will be detained pending your deportation.

Yours sincerely

[Signed]

D Palmen
Supervisor
Character Assessment Unit
Brisbane"
6 Shortly thereafter the respondent applied to the Court, inter alia, for a declaration that the deportation order made on 2 March 2000 had been revoked by the letter of 11 September 2001. The primary judge (Dowsett J) granted the declaratory order sought and also ordered that the Minister pay the respondent’s costs: see [2004] FCA 897. The Minister has appealed to a Full Court against the orders made by the primary judge.

7 In his reasons for judgment the primary judge referred to s 206(1) of the Act, which provides that where the Minister has made a deportation order with respect to a person "the person shall, unless the Minister revokes the order, be deported", and stated at [6]-[8]:

"6. ... Section 206 creates a positive obligation to carry into effect an order for deportation. The only circumstance in which the order is not to be carried into effect is if it has been revoked. Thus the effect of the [Minister’s] submission is that Mr Holthouse, in writing the letter of 11 September 2001, was encouraging a breach of the law. It seems more likely that he was writing on behalf of the Department to indicate that the decision was revoked.
7. In the course of argument, it was suggested that a distinction should be drawn between a finding that the letter itself revoked the decision, a case which is pleaded, and a finding that the letter merely evidenced a revocation, a case which is not pleaded. Although that may be, as a matter of pleading, a point of some significance, I doubt whether it has any present relevance. I find it difficult to believe that the Department had any intention other than to communicate to Mr Craig by the letter of 11 September the fact that the decision was revoked. Whether it was revoked by the letter or by some other act was simply not addressed.
8. In my view, having regard to the terms of s 206 in particular, the better view is that the decision to deport was revoked, and in those circumstances, I am of the view that there is no extant order justifying deportation. I declare that the deportation order made against the applicant on 2 March 2000 was revoked by the letter of 11 September 2001. ..."
8 The Minister accepted that the letter of 11 September 2001 was duly authorised by the Minister. Her main submission was that the primary judge erred in law and in fact in concluding that the letter communicated to the respondent the fact that the deportation order made against him had been revoked. It was contended that, as a matter of construction, the letter merely informed the respondent that "no further action" would be taken to effect his deportation and that he would be released from immigration detention. The Minister argued that the decision communicated by the letter was a decision to "ignore" the deportation order, which is a decision that is qualitatively different from a decision to "revoke" the order: see Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 414.

9 The respondent’s riposte was that the primary judge’s factual conclusion that the deportation order had been revoked was clearly open to him. It was said that the absolute terms in which the letter was expressed were consistent with the order being revoked. Further, so it was argued, in the context of the High Court’s decision in Patterson and s 200 of the Act, it was appropriate for his Honour to infer that the Minister took the proper course of revoking, rather than suspending or ignoring, the decision. The respondent also relied upon the failure of the Minister to call any evidence that the order had not been revoked.

10 The submissions require consideration of the statutory context in which the deportation order was made. Section 200 of the Act empowers the Minister to "order the deportation of a non-citizen" to whom s 201 applies. Section 201 applied to the respondent because he was a citizen of New Zealand who had been convicted in Australia of an offence committed when he had been in Australia for less than 10 years and for which he had been sentenced to imprisonment for a period of not less than one year. Section 500(1)(a) provides for an application to the AAT for the review of decisions made under s 200 because of the circumstances in s 201. As explained above, the respondent’s application to the AAT was unsuccessful.

11 Section 206 provides:

"(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order."
12 Section 82(4) provides that a visa ceases to be in effect when the holder leaves Australia because of a deportation order made under s 200. Also, under the provisions of the Act, and regulations made thereunder, the deportation of the respondent is likely to lead to him being barred from re-entry.

13 Section 253 confers a discretionary power, which was exercised in the present case, to direct that a person against whom a deportation order is in force be kept in immigration detention pending deportation: see ss 253(1), 253(2) and 253(8). Section 253(9) empowers the Minister to order the release of a person who is in detention under s 253.

14 It is clear that the making of a deportation order under s 200 of the Act has serious consequences. Although the legislature, by enacting s 206(2), recognised that there may be circumstances that delay the execution of a deportation order, it nonetheless provided in s 206(1) that, unless the order is revoked, the person against whom it is made "shall be deported". The making of a deportation order renders the person against whom it is made liable to be detained in immigration detention pending deportation. The deportation also has the effect of cancelling the visa of the deportee and is likely to result in the deportee being barred from returning to Australia. In addition to the legal consequences that can flow from the order, as the present case and other cases that have come before the Court demonstrate, persons in respect of whom s 200 deportations orders have been made often have long established family associations in Australia and little or no association with the country to which they are to be deported.

15 In the above circumstances the position adopted by the Minister in the present case is somewhat curious. In substance, that position was that the Minister was entitled to ignore, presumably indefinitely, the deportation order made against the respondent on 2 March 2000. An alternative view is that the Minister suspended the operation of the order. However, it is clear that the Act does not provide for the Minister to ignore a deportation order or to suspend its operation: see Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 ("Dallikavak") at 101-103.

16 It is also implicit in the Minister’s submission that, if at some later point of time she decided to no longer ignore the order (for example, because the High Court had expressed a different view about the deportation power under the Act), the Minister could then revive the order and carry it into effect, notwithstanding the length of the intervening period and the changed circumstances of the putative deportee during that period. The anomalous outcome of that position would be that the putative deportee has no entitlement under s 500 to review the deportation order on the basis of the circumstances existing when the Minister has decided to revive the order.

17 In the above circumstances it is surprising that the Minister did not seek to remove any doubt about the legal consequences of the letter of 11 September 2001, which we were informed was in a standard form that was sent to many other putative deportees in circumstances similar to those of the respondent, by revoking the earlier deportation order. She, or her delegate, could then consider afresh whether a further deportation order was appropriate under s 200, having regard to the current circumstances of the person against whom the order is to be made. Although her counsel suggested there was some doubt as to whether the Minister was functus officio in that regard it is clear that she is not. In Dallikavak at 103-104 Northrop and Pincus JJ stated:

"...if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 at 441-442. See also Acts Interpretation Act 1901 (Cth), s 33(1)."
18 See also Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 ("Kurtovic") at 218-219.

19 Notwithstanding the above matters senior counsel for the Minister maintained the Minister’s position that she had not revoked the deportation order against the respondent and was now entitled to proceed to execute it against him.

20 It is correct that the letter of 11 September 2001 does not state that the deportation order has been revoked. However, the letter implicitly communicated to the respondent that a decision had been made by, or on behalf of, the Minister to treat the order as no longer operative or having any force or effect. In the statutory context in which the order was made that is precisely the consequence of a revocation of the order.

21 A number of matters have led us to conclude that the primary judge was correct in regarding the letter of 11 September 2001 as a communication to the respondent that the deportation order made against him had been revoked by, or on behalf of, the Minister.

22 First, as just outlined, in the statutory context in which the order was made it is appropriate to infer that a communication that the order is no longer operative, albeit because there was no power to make it, warrants an inference that the order has therefore been revoked. The inference is supported by the fact that the Minister has acted on the basis of legal advice from the Australian Government Solicitor, who can be assumed to have been aware of the existence of a power under the Act to revoke the order and the absence of any power under the Act to ignore or suspend the operation of the order. The inference is also warranted by the absence of a power in the Minister to suspend or ignore a deportation order. As the law then stood, revocation was the only action which the Minster could lawfully have taken in relation to the order. It was suggested on behalf of the Minister that revocation was unnecessary because her order was ultra vires and therefore a nullity. Even if it were assumed that the communication may have been unnecessary the evident purpose of the letter was to declare the Minister’s position in relation to the order and to remove any residual uncertainty as to its status. That is, the Minister had decided that no further action would be taken to effect the appellant’s deportation – a result which could only be secured in accordance with the Act by the Minister revoking her earlier order: cf Dallikavak at 103-104 and Enid Campbell, "Revocation and Variation of Administrative decisions" (1996) 22 Monash University Law Review 30 at 41-45.

23 Secondly, as explained above, the mere fact of the order having been made had adverse consequences for the respondent. It can be inferred that, upon the Minister determining that she had no power to make the order and therefore no power to carry it into effect, she intended to, and would, take the appropriate legal steps available to her under the Act to bring its adverse effects to an end. One of those steps, which the Minister duly took, was to bring to an end the respondent’s detention pending deportation, because there was to be no deportation. It is reasonable to infer that the Minister also intended to take, and took, the other step being revocation of the order, thereby bringing to an end her duty under s 206(1) to deport the respondent.

24 Thirdly, the Court can be more confident in drawing the inferences referred to above in the absence of any evidence to the contrary: see Jones v Dunkel (1959) 101 CLR 298 at 308 and Weissensteiner v The Queen (1993) 178 CLR 221 at 227.

25 The Minister also sought to raise an alternative ground of appeal that was not raised before the primary judge or in her Notice of Appeal. The ground was that, if the letter of 11 September 2001 communicated a decision to revoke the deportation order, the decision was based on a mistake of law and a misconception of the Minister’s powers with the consequence that it was vitiated by jurisdictional error.

26 No evidence was sought to be proffered in support of the ground. We agree with the respondent’s submissions that the ground might raise a question of fact and that it is too late for the ground to be raised for the first time at the hearing of the appeal in the present case. In any event the ground was not raised in the notice of appeal and no application was made to amend the grounds of appeal.

27 We would add that the ground is misconceived. The letter appears to have been written on the basis that the Minister was of the view that, because of the High Court’s decision in Patterson, she did not have the power to deport the respondent and that, accordingly, she should revoke the deportation order. The legislature intended that the Minister is to exercise her discretionary powers on the basis of a proper understanding of what is required by the Act: see Kurtovic at 210. As explained above, after the High Court’s decision in Patterson, the revocation of the deportation order made against the respondent was an exercise of the Minister’s discretionary power based upon a proper understanding of what is required by the Act. Put simply, revocation was plainly the correct course for the Minister to take. In those circumstances the exercise of the revocation power by the Minister does not appear to involve any jurisdictional error on her part. The consequence of the later High Court decision in Shaw is that it is now open to the Minister to again consider whether to exercise the power conferred under s 200 of the Act. It is not a consequence of the decision in Shaw that any administrative decision based on the earlier inconsistent decision of the High Court in Patterson is thereby invalidated.

28 For the above reasons we have concluded that the appeal is to be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Merkel and Hely.